Walter v. Kierstead

• Decision Date: 30 September 1884
• Citation: Walter v. Kierstead, 74 Ga. 18 (Ga. 1884)
• Parties: Walter. vs. Kierstead.
• Court: Georgia Supreme Court

74 Ga. 18

Walter. vs. Kierstead.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Practice in Supreme Court. Courts. Jurisdiction. Admiralty. United States Courts. Attachment. Pleadings. Maritime Law. Tenants in Common. Partnership. Garnishment. Practice in Superior Court. Before Judge Mershon. Glynn Superior Court. May Term, 1884.

To the report contained in the decision, it is only necessary to add, in explanation of the first division thereof, the following:

The only evidence of service of the bill of exceptions is an affidavit attached thereto of one C. I. Stacy, in whichhe stated that he had served a copy of the bill of exceptions on the attorneys of defendant in error by serving one of them personally on the day named. Stacy\'s name does not appear as of counsel, nor is there anything further to indicate who he is or whether he has any connection with the case. A motion was made to dismiss the writ of error, on the ground that this service was not sufficient. It was overruled.

Goodyear & Kay, by brief, for plaintiff in error.

Harris & Smith, by H. E. W. Palmer, for defendant.

Hall, Justice.

1. The motion to dismiss the writ of error must be denied. While the statute (Code, §4259) states in terms that, within ten days after the bill of exceptions has been signed and certified, the plaintiff therein shall serve a copy of the same upon the opposite party, etc., it has never been so rigidly construed as to hold that the service must be made by the plaintiff in error himself, and that service by any other person would be insufficient. On the contrary, it has been frequently held that service made by an attorney in the case and properly verified, or made by a sheriff or other officer of court, was a compliance with the statute, We see no reason why the service may not be effected by any other person than the plaintiff, his attorney or the sheriff, and proved in the same manner as it would have to be proved if made either by the plaintiff or his attorney. The fact of the service, by whomsoever made, with due proof thereof, fulfills the requirements of the law, and is all that is essential to its validity.

2. This was an attachment, at the instance of the plaintiff, against the defendant. The affidavit on which it is founded sets forth that the defendant in error was the master and part owner of the British barque, Emma G. Scammel; that the owners of the barque were indebtedto the plaintiff in the sum of $891.00, and that the defendant, the master of the barque, and her owners reside out of this state. The declaration on this attachment described the cause of action it was brought to enforce, and the defendant therein, and those associated with him in the ownership of the vessel on which the attachment was levied, as follows: That the plaintiff, " James E. Walter, was the owner of a dredge lying in the waters of the harbor of Brunswick, in Glynn county, known as the dredge \' Hercules, \' and that W. F. Kierstead, as master a nd part owner of the British bar que, Emma G. Scammel, and the other owners of said barque, who are unknown to petitioner, are indebted to petitioner in the sum of $891.00, which they refuse to pay; and that said indebtedness is by reason of damage to said dredge by the barque, Emma G. Scammel, running into said dredge while said dredge was at anchor, through the negligence and want of skill of the master of said barque."

To this declaration and attachment the defendant filed this demurrer:

(1.) That said declaration shows upon its face that the superior court of said county has not jurisdiction of the so-called cause of action therein set forth, and that the jurisdiction, if any, is vested in the United States Court, and not in the state court.

(2.) That the declaration shows an attempt to proceed against parties whose names are not alleged as unknown to deponent, either in the affidavit for attachment or the declaration.

(It will be observed that in fact the declaration does allege that the other owners are unknown.)

(3.) That said declaration in attachment seeks to reach a copartnership interest by levy and sale; whereas the same must have been served by process of garnishment.

(4.) That the affidavit and attachment proceedings are totally defective in law.

The court sustained this demurrer and ordered the plain-tiff\'s action dismissed; and thereupon he excepted, and alleges error in this judgment upon each and all the grounds on which it is put.

First, the ground upon which the want of jurisdiction is claimed is, that the injury for which the suit is brought is a maritime tort, and therefore the case comes within the admiralty jurisdiction, which, under the constitution and laws of the United States, is exclusively vested in the courts of that government. That state courts can exercise no jurisdiction in causes peculiarly cognizable in admiralty is so well settled that it would be a waste of time to cite authorities to the question. But there are others in which the common law courts, both of the states and of the United States, exercise a concurrent jurisdiction with the courts of admiralty. Sub-section 8 of §563, Rev. Stat, of the U. S., which is a codification of all previous congressional legislation upon the subject, confers upon the district courts of the United States authority to hear and determine " all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it; and of all seizures on land and on waters not within the admiralty and maritime jurisdiction. And such jurisdiction is declared to be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit courts." This is decisive of the question here made, unless this case can be taken out of the provision in the first exception mentioned, " saving to suitors the right of a common law remedy." It is contended that the remedy afforded by attachment is not a common law, but a statutory remedy. We do not think that the legislation under consideration contemplated the distinction here insisted on. On the contrary, it merely meant to give concurrent jurisdiction to the common law courts, in cases where they had power to enforce such rights as the admiralty courts could enforce, whether the right or remedy...